Articles Posted inCommunity Property Asset

A couple in Canada who decided to divorce after 35 years of marriage had to go to court to settle one of the more important aspects of their separation: Who gets their Edmonton Oilers season tickets? Often during the divorce there are issues regarding the division of property. Usually the house is the main issue. In others people have to divide personal property such as jewelry, cars, dogs and cats and other belongings people acquire over there long term marriage.

Often people have to deal with other financial issues such as spousal support and in long term marriages that can be a huge issue.

Beverly and Donald McLeod separated in 2015, with Donald agreeing to pay Beverly $15,000 per month in spousal support. But they needed a court order to decide what to do with the hockey tickets they had shared for the past 11 years.

Financial issues are consistently among the top reasons for divorce, so it’s not surprising that divorced couples often end up falling behind on their mortgage and facing foreclosure. And unfortunately, foreclosure—frustrating and stressful enough on its own—is often further complicated by issues unique to divorce.

It’s very common in divorces for one spouse to transfer their interest in the marital home to the other. It’s also very common for the transferring spouse to think that such a transfer relieves them of any liability for the mortgage—unfortunately, that’s not how it works.

If both spouses are listed as borrowers on the mortgage, transfer of the property alone will not remove a spouse from the mortgage.

In Gutierrez v Gutierrez a Mississippi Supreme Court Case the supreme Court of Mississippi evaluated and ruled upon a very complicated spousal support and property debt and asset division family law case. The first major issue the trial court had to undertake was 2nd mortgage that was taken out soley during the marriage under Clayton Frank Gutierrez’s name. The trial court laid out three questions it determined. Clay was the sole person who signed for the 2nd mortgage. Trisha Guterriez did not sign for the 2nd mortgage. In addtion the trial court ruled that the creditor did not make a claim for the enforcement of the 2nd mortgage. The chancellor in Mississippi which would be the trial Court in California made each party responsible for the equal payment of the debt thus each spouse would assume joint responsibility for the 2nd mortgage.

Each party on appeal to the Mississippi Supreme court made a different argument based on the 2nd mortgage. Mr. Gutierrez claimed that since he was soley liable for the note and signed for the 2nd mortgage he should be soley paying for the mortgage and not Mrs. Gutierrez. Mrs. Gutierrez appealed claiming she wanted a lump sum spousal support payment rather than monthly payments. Each of their argument strongly relied on the outcome of how the debt and payments on the 2nd mortgage would be handled by the Mississippi Supreme court.

Mrs Gutierrez wanted that the 2nd mortgage remained community debt and jointly responsible to the both parties. If so she would gain much more ability to claim more spousal support. Mr. Gutierrez wanted to claim it as his sole responsibility because then he would have more community debt to claim and thus less income to provide more spousal support to Mrs. Gutierrez.

Janet Jackson is going through a child custody battle and a divorce battle with Wissam Al Mana who is from Qatar and is a Billionaire who invests internationally in all sorts of things. Recently they were seen in the Royal Courts in London after a court hearing on Custody. It would seem she is involved in a hotly contested international child custody dispute. The couple had split in April after Janet had given birth to their daughter in January, Elissa.

In the Divorce proceedings word has gotten out that Janet will receive a sizable settlement payment from Al Mana around $200,000. And she will remain in London to raise the child. Janet is worth $150,000 so already has a lot of money and now will seek to increase her already wealthy amount of money. This turn out to be an interstate child custody dispute and also an international divorce. However, it appears the couple have settled on the London Courts to serve as the jurisdiction to hear the Divorce and custody matters. The child Elissa was born in London so England would be her home country. However, since Janet is also a US citizen she could also one day decide to head back to the US to live. Likewise Al Mana is from Qatar and could also want at some time to take his child to visit or live in Qatar. But for right now it seems that the parents have somewhat resided to the fact that London will be Elissa’s home.

Janet is talks to be part of a netflix 10 part documentaries about her life after her divorce from Al Mana. This could net her a significant some of money which might effect the settlement of the divorce. In California the courts look to the standard of living for the spouses post separation. So the London Courts will probably do the same.

The British divorce court sided with a English lady who was a stock market whiz person who made $13 million dollars during her marriage. Originally the Divorce Court had sided with the ex spouse husband and gave him a cut of all her stock earnings thus making him quite wealthy upon a short term marriage. Julie Sharp a stock trader by profession in England reduced significantly her husbands share to only $2 million dollars rather than the traditional split down the middle. Why did the family law court in England do so? Well the time honored scenario of the equal split down the middle for spouses did not seem to sit well with them. In California family law Court Spousal support is used to determine the standard of living scenario to make the ex spouses live according to the standard they had while married. This situation usually has more impact upon lengthy marriages. In California a long term marriage would be considered 10 years or more.

Mrs. Sharp was an energy trade on the British stock exchange. In 2015 the British family law Court made a ruling giving her ex 2.74 million pounds. Later the London appeals Court lowered it to 2 million pounds. The London appeals court has been on a recent trend of not equally splitting the assets as it had done in the past to achieve a fair and equitable distribution of a divorced couples assets. Now they have changed and seem to be permitting the ex spouse whom may be the bread winner to keep more of their earnings and shortchanging the less wealthy ex spouse with less money. Thus it appears the London appellate court is deviating from fairness to a more of who makes more money prevails attitude.

They further state that nonworking spouses will be awarded “special contributions” for their time in the marriage. What exactly is a special contribution is uncertain. It seems to be a new trend that certainly favors the spouse who makes more money and takes away from the spouse who does not work. The idea that there is a financial partnership among married people is starting to be thing of the past and is a disturbing trend on the idea of marriage in the United Kingdom. The benefits of marriage seem to be seem to be on the downside in British culture. Nothing like this has arrived in California or United States just yet. However, if ever this type of ruling did appear I assume it will be fought with great zeal in the Family Law Court system.

A recent Florida Supreme Court case has been published that reviewed a case regarding Hooker v Hooker. The issue of Donative Intent became an issue of the parties. The Supreme Court of Florida did not decide the fate of the issue of donative intent of the spouses but rather the appellate standard of review of the trial courts decision on donative intent.

The Florida Supreme Court said in its opinion that the trial court was correct in using “competent and substantial evidence.” “So instead of just determining whether or not there was competent evidence to support the trial court’s decision, the 4th (District) erred by actually reweighing the evidence and substituting their own judgment,”

In California if an order is appealed, the appellate court must use a standard of review of determining if there is substantial evidence that will support the family law courts orders. The appellate court cannot retry the case they are only to make inferences to make sure the trial court did not error on the use of the law.

Jesse Jackson Jr. has been going through a bitter divorce with his ex wife, Ald Sandi Jackson. They were married for 25 years and continue their courtroom drama. He was a former U.S. House of Represenative. His ex is trying through legal means and her lawyer to find out very personal information from Jesse Jackson, Jr. such as all his girlfriends he had during their 25 year marriage. The lawyer is using the process of Discovery to further investigate these lurid details. The divorce proceedings are currently being heard in Washington D.C. Jesse Jackson, Jr. through his lawyers has objected to the questions stating that they are irrelevant. Sandi Jackson is tyring to get spousal support and attorney fees.

The change of Venue has been a hotly contested issue of the Divorce proceedings. Jesse Jackson Jr. filed for Divorce initially in Cook County Illinois first. Later Sandi Jackson filed for divorce in Washington D.C. where she lives. There usually is a first in time rule dealing with which state or county will hear the divorce proceedings. However, often the Judges of each Court will contact each other and decide based on all the evidence, witnesses and other issues which jurisdiction is better suited to maintain jurisdiction of the Divorce case. Apparently, the issue of venue was a big problem for Jesse Jacksion Jr. as his children who are 13 and 17 were he alleged being harmed unnecessarily by his Sandi Jackson’s harmful public comments. Rather than fight the venue of the case he conceded that Washinton D.C. would be the appropriate forum to litigate their divorce.

Jesse Jackson Jr. had to resign from the U.S. House of Representatives because he had missappropriated $750,000 from his campaign treasury. He ended up going to prison for this crime. In addition, Sandi Jackson as well went to prison for her involvement in the crime. Interestingly, both parents had to do their prison time separately and at different times because they needed to take care of their minor children.

Often parties to a marriage buy a home and eventually when the divorce comes are trying to split the marital equities and debts. One of the hardest assets to divide is the marital residence. Why is it hard to divide? Often there is a dispute as to how to get the highest value for the marital residence after the parties have separated. herein lies the case of Easley v Easley a Case out of Alaska Supreme Court. It involves the divorce of the husband and wife who owned a marital home in Alaska. The parties were divorce in 2008 and had divided all marital assets including the sale of the marital home. Or so it seemed. As the husband Easley claimed although the sale of the marital home was ordered by the Trial Court the Husband did not sell the home and divide the proceeds.

Why you might ask did he not sell the home back in 2008 when the judge ordered him to do so? The husband sat on his hands for 7 years claiming he was denied his due process rights in the order to sell the family home. The husband Kevin claimed the legal defense of mutual mistake as to why he did not sell the marital home. The home had declined in value and of course he did not want to sell the valuable asset at the time it was ordered. He also claimed that he was denied his due process rights.

Now the argument for Due process violations has as far as I have ever seen in Family Law Cases showed up on appeal claiming that Mr. Easley was denied his notice and opportunity to sell the family home. Mr. Easley claimed there was actual prejudice, However, the Alaska supreme denied the actual prejudice.

The Alaska Supreme Court held that Mr. Easley had numerous opportunities to be heard in Court on the sale of the marital home. Since the Court ordered sale in 2008 Mr. Easley was in Court in 2009 arguing that the sale could not go through due to mistake of fact. In 2014 he was back in Court arguing that there was no date to sell the home. In addition, in 2015 he was in Court twice regarding if there was unnecessary delay in the sale of the marital home. The court at that time found there was a delay and ordered the sale of the home. The further came to the conclusion that there was not due process violation because each time Kevin went to Court he knew that his ex wife wanted her share of the proceeds of the marital home. Therefore the due process argument failed.

The last argument Mr. Easley threw before the Alaska Supreme Court was the allegation of inequitable distribution of marital proceeds of the sale of the house. Again the Court held that there was no inequity as far as his spousal support payments to his ex wife. He attempted to claim that the spousal support payments should be credited against the sale of the house. However, the Court found that the spousal support payments were a separate order for the division of the sale of the house proceeds.

It should not be the point of a prenuptial agreement to avoid all financial responsibility to the other spouse. As the family law code sections are abundantly clear about is that they do not want the spouse who is not on the receiving end of the prenuptial agreement and stands not to benefit at all from the prenuptial agreement that fairness is the key. The family law Code is clear that is wants equity and fairness in the protection of marital assets. Although a party can contract away their assets and debts through the prenuptial agreement it is vital to the integrity of the family law judicial system the one party does not blindside another less fortunate party and take off with all the loot.

California legislature has codified these prenuptial statutes under family code section 1612(c) and section 1615 that unconscionability and independent legal representation are a mandate to making an enforceable prenuptial agreement. One party cannot unduly take advantage of another party through one sided and lopsided contracts that give the other party nothing while the other party hauls away all the money. If both parties and more importantly the party who has the assets to protect can enter the prenuptial setting with an open mind to make the contract fair and equitable that party will avoid unnecessary litigation down the road. People, however, often enter these prenuptial agreements with a greedy mindset and try either to outsmart or blatantly take all the assets away from the other party. This leads to an obvious disparity in the contractual agreement and creates a huge public policy concern.

That is the reason that an independent legal counsel is almost mandatory for the legitimacy of the prenuptial agreement to work. Without the independent legal counsel for the party not receiving a financial gain at the outcome of the prenuptial agreement would create innumerable unconscionable agreements that would be too easy to enter into and create too many unequally bargained contracts.

The concept of proving goodwill in divorce proceeding seems rather complex and vague. The idea that a business can be divided as community property is a relatively new idea that the courts have to deal with. How to determine the valuation of a business requires alot of time and forensic accountants. The arguments laid out by each party drive the Courts to have to decide what is separate property and what is community property. A long term marriage makes this descision even more complicated. The complication lies in the evaluation of a community property asset that sometimes does not have a easy financial determination. It may be even considered speculative to determine what is goodwill of a business. Is it the receipts that come in monthly? minus the costs and expenses. Or is it something more vague and uncertain that must be evaluated on a case by case basis?

To place more complication on the matter. The goodwill might not all be community property but also separate property thus tracing property to its source will be another issue that must be determined by the court. This often cannot be an easy task given the length of marriages and the commingling of separate property assets over a period of time while the couples are married. In addition the earnings of a business and the future receipts that will occur although speculative seem to be the only way to evaluate a business. However, Courts still will only use this future earning determination as a factor and not the only method to evaluate a business because of its uncertainty.

In addition, the Courts still cannot determine goodwill based on economic future earnings alone. The Court must also consider such factors as the parties age, health, past proven earning power and professional reputation in the community. And the Court must consider the personality traits of the professional involved. The Court must examine the professional judgment, skill and knowledge of their business which would be rather complicated and require expert witnesses to cooberate the actual veracity of the skills of the professional. Once the expert witnesses are testifying the Court will continue its investigation into the professionals experience by comparing their skills to other professionals. Also the Court will look at the nature and duration of his business so that they can determine whether goodwill even exists in the business.